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TMI Blog2014 (9) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... shares amounting to Rs. 1,44,24,299/-. Your appellants submit that the above expenditure ought to have been allowed as claimed by your appellants. Without prejudice to the above, your appellants submit that the income earned from the share application money should be netted off against the expenditure and only the net expenditure be considered for disallowance. 2) The learned Commissioner of Income Tax (Appeals) erred in confirming the disallowance of Rs. 1,36,08,000/- under section 14A read with Rule 8D. Your appellants submit that the said disallowance is not called for and the same be deleted. Without prejudice to the above, your appellants submit that the disallowance is excessive and ought to be reduced substantially. 3) The learned Commissioner of Income Tax (Appeals) erred in confirming the action of Assessing Officer in computing the income of your appellant u/s.1I5JB of the Income Tax Act, 1961. Your appellant submits that the provisions of Sec.115JB are not applicable to your appellant's case. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um on Investment to the book profits computed under MAT provisions. Your appellants submit that the Amortization of Premium on Investment is not a provision made in diminution in the value of investments, but it reflects an actual loss incurred in the value of the investments and thus should not be added to the book profits computed under MAT provisions. 4) Your appellant submit that addition of Rs. 27,58,29,642/- as made by the learned Commissioner of Income Tax (Appeals) in para 6.6.2 of the appellate ought be deleted. The Commissioner of Income Tax (Appeals) erred in "confirming" this amount as addition in computing the book profit u/s.115JB. Your appellants submit that this amount was never added by the Assessing Officer and hence question of confirming the same doesn't arise at all. Further this amounts to enhancement of income of your appellants without giving any notice for enhancement and hence the addition is illegal, bad in law and void. Your appellants further submit that even on merits the addition is not warranted and ought to be deleted. 5) Without prejudice to Ground No.4 your appellant submit that the addition of Rs. 27,58 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities below. Therefore, while deciding the appeal for the AY.1999-2000 (supra), Tribunal held as under: "We have observed from the assessment as well as the impugned order that there is no discussion on this aspect of the matter. Under such circumstances, we are of the considered opinion that it would be just and fair if the impugned order on this issue is set aside and the matter is restored to the file of the AO. We order accordingly and direct him to decide this question afresh as per law after allowing a reasonable opportunity of being heard to the assessee." 3.2. Before us, AR submitted that similar orders i.e. restoring the matter to the file of the AO was passed by the Tribunal for the ITA Nos. 2195/ M/ 2004 AY.2000-01; 3608/M/2006 AY. 2001-02; 3609/M/2006 AY. 2002-03 & 3575/M/2009 AY. 2005-06 also. Departmental Representative (DR) submitted that he had no objection if matter was restored back to the file of the AO for fresh adjudication. Respectfully following the orders of the coordinating benches, in the interest of justice, we restore back the issue to the file of the AO to decide the question afresh as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osits in current accounts of Rs. 215 crores on which no interest was payable. He has further contended that since the main business of the assessee was to accept deposits, earn and give interest, hence the business expenditure of the assessee was out of the borrowings and deposits whereas the own funds of the assessee were exceptionally high in comparison to the investments made. He has further contended that even no disallowance was warranted under rule 8D(2)(iii) of the I.T. Rules contending that section 14 A applies to direct expenditure incurred for earning exempt income and not to indirect expenditure. He has therefore contended that no disallowance was warranted u/s 14A in the case of the assessee. On the other hand the ld. D.R. has relied upon the findings of the lower authorities. 7. We have considered the respective submissions of the ld. representatives of the parties. We may observe that the Hon'ble Bombay High Court in the case of 'CIT vs. Reliance Utilities and Power Ltd.' (supra), has observed that if there are funds available with the assessee, both interest free and overdraft/loans taken, then presumption would arise that investments would be out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to prepare the accounts as per the provisions of Companies Act 1956,that sub-section 2 of the Sec.115JB did not require applicability of Schedule VI of Companies Act for computing book profit. Accordingly, he held that provisions of Section 115JB were applicable in the case under consideration. 9.1. Before us, Authorised Representative (AR) submitted that provisions of Section 115JB were not applicable to the assessee-bank. He relied upon the orders of Union Bank of India (ITA/4702 & 4706/M/2010 dt.30-06-2011) delivered by the ITAT 'B' Bench, Mumbai and Indian Bank (ITA No.469/MDS/2010 dt.30-08-2011) delivered by the 'C' Bench of Chennai and the matter of ICICI Lombard General Insurance Company Ltd., reported by - 2012-TIOL-629-ITAT-MUM. Departmental Representative (DR) supported the orders of the FAA. 9.2. We find that the issue of applicability of Section 115JB has been discussed by the 'B' Bench of Mumbai Tribunal in the case of Union Bank of India (supra) in favour of the assessee. In that matter Tribunal has held as under: "18. Ground No. 5 (in ITA No.4706/M/10-A.Y.2006-07) relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AY.2006-07 stands partly allowed." 9. The ld. D.R. could not bring before us any contrary fact or case law which may justify departure from the above finding of the Tribunal. So respectfully following the proposition of law laid down by the co-ordinate bench of this Tribunal, for the sake of consistency, this issue is allowed in favour of the assessee. 10. The ld. A.R. has stated that if the ground No.3 is allowed in favour of the assessee then the remaining grounds of appeal, being alternative, are rendered infructuous and hence do not need any findings at this stage and are rendered academic. It is held accordingly. In the result appeal of the assessee is partly allowed. 11. Now, we take up the Revenue's appeal. ITA No.4113/M/2012 12. The Revenue has taken the following grounds of appeal. "1. On the facts and circumstances of the case and in law, the CIT(A) erred in allowing whole of the bad debts of Rs. 264 crores as this was provision and not actual write off of bad debts. 2. On the facts and circumstances of the case and in law, the CIT(A) erred in directing the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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